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本文通过对甘肃X村、L村和M村的民俗习惯与司法实践的调研,展示山区民间纠纷解决方式的演变历程。在山区乡村,1990年以前的民事、经济纠纷的解决方法基本上都是习惯习俗,它们使得争端以温和的方式得以解决,降低了处理纠纷的成本;在此期间,山区村民对刑事案件同样用习惯习俗来处理,使刑事案件民事化,以金钱赔偿、议论压力、精神威慑等方式来了断,任惩罚侵害者和维护双方家庭、宗族的人际关系之间寻求平衡。1990年之后,山村出现了多元权威,纠纷解决机制也多元化。年长者在处理争端的时候,仍然会受传统观念的约束,但这种模式在逐渐淡化;同时,村委会和乡政府也参与纠纷解决,由于其角色定位的混乱,基本上无法承担解决山区乡村纠纷的责任;年轻者在大多数情况下能尊重固有的传统,当他们认为这些民俗习惯与自己的价值观冲突或者有损于自己权益的时候,就会寻求法律的保护。当然,在山村,打官司者还是边缘的角色,同时也遭人非议,他们何时能实现从“边缘”到“中心”的转换,还难以预料。
Through the investigation of the folk custom and judicial practice of X village, L village and M village in Gansu, this paper shows the evolvement course of the folk dispute resolution method in mountain area. In mountainous villages and rural areas, the solutions to civil and economic disputes prior to 1990 were basically customary customs. They allowed the dispute to be settled in a mild manner and reduced the cost of handling the disputes. In the meantime, the villagers in mountainous areas also used criminal cases in the same way Customary customs, criminalization of civil cases, compensation for money, argumentative pressure, mental deterrence and other means to break off, punish the violator and safeguard the mutual relations between the families and clans of both parties. After 1990, there were multiple authorities in the village and diversified dispute resolution mechanisms. While dealing with disputes, the elders will still be bound by the traditional concepts, but this model will gradually diminish. At the same time, the village committees and the township governments are also involved in the resolution of disputes. Due to the chaos of their role orientation, they can not afford to solve the problem The responsibility of rural disputes in mountainous areas; young people, in most cases, respect inherent traditions, and seek legal protection when they think they conflict with their own values or undermine their own rights. Of course, in mountain villages, litigants are still marginalized people, and they are also criticized. It is also hard to predict when they can shift from the “edge” to the “center.”